DR.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY, LUCKNOW

BEYOND BORDERS: ENFORCEMENT OF FOREIGN JUDGEMENTS IN

INDIA

SUBMITTED TO - SUBMITTED BY-

Prof. Vipul Vinod Dushyant Singh

Assistant Professor (Law) SEM-IV

RMLNLU 220101069
B.A L.L.B (Hons.) RMLNLU

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 TABLE OF CONTENTS

Table Of Contents ............................................................................................................. 2

ACKNOWLEDGEMENT ................................................................................................ 3

DECLARATION .............................................................................................................. 4

Introduction ...................................................................................................................... 5

A. Foreign Court ........................................................................................................... 5

B. Foreign Judgement ................................................................................................... 5

Objective Of Enactment Of Provisions For Enforcement Of Judgements Passed By

Foreign Courts .................................................................................................................. 5

Foreign Judgements When Not Binding ............................................................................ 6

A. When a Foreign Judgement has been Passed by a court lacking jurisdiction ............. 6

C. When a Foreign Judgement is Against Indian or International Law .......................... 7

D. When a Foreign Judgement is Passed in Direct Contravention of the Principles of

Natural Justice .............................................................................................................. 8

E. When a Foreign Judgement is Procured via Fraud .................................................... 8

F. When a Foreign Judgement is Found to be in Violation of Indian Law ..................... 8

Reciprocating Territory And Enforcement Of Foreign Judgements ................................... 9

A. Manner of Enforcement of Foreign Judgements/Decrees.......................................... 9

B. When Judgement Passed by Foreign Court of a Reciprocating Territory .................. 9

C. When Judgement is Passed by a Foreign Court of a Country Not Designated as

Reciprocating Territory ............................................................................................... 10

References ...................................................................................................................... 11

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 ACKNOWLEDGEMENT

I would like to express my deepest gratitude and respect to Prof. Vipul Vinod,who
gave me the opportunity to do this interesting project on the Topic “BEYOND
BORDERS: ENFORCEMENT OF FOREIGN JUDGEMENTS IN INDIA” which helped me
in exploring and researching on the topic in great depth and enriched my
knowledge on the same. I hope to be able to provide a project which is well
researched and enriching for the readers and justifies the opportunity given to me. I
also thank my friends and seniors who provided their continuous insights for
improving my project and encouraged me to complete the project within the given
time frame.
DUSHYANT SINGH
Enrollment No.- 220101069
B.A. LL.B. (Hons.)

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 DECLARATION

I hereby declare that the project on the Topic “BEYOND BORDERS: ENFORCEMENT OF
FOREIGN JUDGEMENTS IN INDIA” submitted by me to Dr. Ram Manohar Lohiya National
Law University, Lucknow, Uttar Pradesh in partial fulfillment requirement for the award
of the degree of B.A.L.L.B (Hons.) is a record of bona fide project work carried out by
me under the guidance of Prof. Vipul Vinod. His guidance and advice carried me through
all the stages of writing and completing this project work. I further declare that the work
reported in this project has not been submitted, and will not be submitted either in part or
in full, for the award of any other degree or diploma in this institute or any another
university.

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 INTRODUCTION

The enforcement of judgements of “Foreign Courts” in a country comes under the ambit of
Private International Law. Sections 13 and 14 of The Code of Civil Procedure, 1908 are a
manifestation of Private International Law in Indian domestic laws and the aforementioned
sections and related judicial pronouncements (since India is a common law country) govern the
enforceability of foreign judgements in India
At the beginning, it is pertinent to define the meaning of the terms “Foreign Judgement” and
“Foreign Court” to ensure clarity.

A. Foreign Court

The term “Foreign Court” refers to a court/judicial body which is situated outside the territory of
the Republic of India and has not been established and continued by the Union Government [1].
For e.g., courts established in other countries such as Australia, England, France, Germany etc.
are considered as Foreign Courts as per the definition given in the CPC.

B. Foreign Judgement

The term “Foreign Judgement” refers to a judgement Passed by a foreign court [2].

OBJECTIVE OF ENACTMENT OF PROVISIONS FOR ENFORCEMENT OF

JUDGEMENTS PASSED BY FOREIGN COURTS

The enforcement of a judgement passed by a foreign court is based on the principle that the
adjudication of a dispute by a foreign court of competent jurisdiction gives rise to a legal
obligation to execute the verdict of the court.
While the rules with respect to Private International Law and the enforcement of its principles
differ from nation to nation, there are certain regulations which are deemed to be applicable to
almost all civilised legal jurisdictions.
This nature of recognition is catered for not for the sake of international courtesy but instead for
the furtherance of justice, equity and good conscience and to take foreign law and judicial
pronouncements into consideration can in no manner be considered as derogation of the
sovereignty of a nation – state [3].

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As rightly stated by Cardozo, J., in the case of Locks v. Standard Oil Co.[4], refusal of courts in
one jurisdiction to act upon the decrees passed by courts possessing appropriate jurisdiction in
foreign jurisdictions will make it difficult to carry out tasks in the modern world. He further
stated that there arises no reason to not recognise foreign judicial pronouncements unless the
same would lead to a violation of the principles of justice, equity and good conscience or is
against morality and public policy.

FOREIGN JUDGEMENTS WHEN NOT BINDING

Under Section 13 of the CPC, a foreign judgement shall operate as res judicata with respect to
the parties involved except when one or more conditions specified in clauses (a) to (f) of S. 13
become applicable.
According to the principle laid down by AV Dicey [5] and referred to in the case
of Viswanathan v Abdul [6], a judgement passed by a foreign court cannot be assailed on the
basis of either mistake of law or mistake of fact.
Thus, a foreign judgement shall not be considered as conclusive in the following 6 cases:
1. When the Foreign Judgement has not been issued by a court with competent jurisdiction,
2. When the Foreign Judgement is not based on merits.
3. When the Foreign Judgement is against Indian or International Law
4. When the Foreign Judgement is opposed to the principles of natural justice.
5. When the Foreign Judgement has been obtained by fraudulent means
6. When the Foreign Judgement is in breach of Indian Law.

A. When a Foreign Judgement has been Passed by a court lacking jurisdiction

It is a universally recognised and essential principle of law that a judgement if passed by a court
with respect to a dispute which it lacks the jurisdiction to adjudicate is null and void.
Thus, applying the same rule to Private International Law and its embodiment in the CPC, a
foreign judgement must have been passed by a court of competent jurisdiction to be recognised
as being conclusive and thus be enforceable [7]. The court must be competent by virtue of both
the law of the state and by the definition of International Law and must have directly adjudicated
upon the legal matter which is being pleaded as res judicata to be enforced.

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Furthermore, what is considered “conclusive” is the judgement and not the ratio decidendi i.e.,
the reasoning behind the judgement.
A landmark judgement in this regard is the case of Gurdyal Singh v. Rajah of Faridkot [8].
In this case a person “A” filed a suit in the court of the native state of Faridkot against a former
employee “B” for misappropriation of a particular sum of money belonging to “A”. B was a
domicile of another native state Jhind. B had travelled to Faridkot in 1869 to work under A but
left Fardikot in 1874 and returned to Jhind. The present suit was brought by A against B in 1879
when B was neither residing in or was a domicile of Faridkot and B did not appear at the hearing
of the suit in Fardikot and an ex parte decree was passed by the court at Faridkot against B.
When A filed a suit in a court in British occupied Indian territory, the court refused to enforce
the decree passed by the court at Fardikot on the ground that the court at Fardikot had no
jurisdiction to adjudicate the suit. The mere fact that the alleged embezzlement took place in
Faridkot would not grant jurisdiction to the court at Fardikot. Neither was B residing in nor was
he a domicile of Faridkot at the time that the adverse decree was passed. Thus, taking into
consideration the rules of Private International Law, the court at Faridkot lacked jurisdiction and
the decree so passed would be null and void.
B. When a Foreign Judgements are not passed on merits of the case
In order to be considered conclusive, the judgement passed by a foreign court must have been
given on the merits of the case [9].
A judgement is said to have been issued on merits if the judge, post the conduct of a fair hearing,
allowing both parties to represent their case and scrutinising the evidence, rules in favour of a
party to the dispute.
Thus, in certain cases such as when a suit is dismissed due to the plaintiff failing to appear in
court, such judgements are not considered to be judgements made on the basis of the merits of
the case.
However, a judgement passed by a court ex parte will not lead to it automatically being
considered to not be based on merits of the case [10].

C. When a Foreign Judgement is Against Indian or International Law

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A judgement which is not consistent with, is against or is predicated upon an incorrect
interpretation of international law or a refusal to recognise Indian law wherever applicable shall
not be considered to be a conclusive judgement5.
However, the mistake must be prima facie apparent in the proceedings.
As stated in the case of Narasimha Rao v. Venkata Lakshmi [11], when a foreign judgement is
delivered based on grounds which are inconsistent, unrecognised or in transgression of Indian or
International law, it will not be considered conclusive and shall not be enforceable in India.

D. When a Foreign Judgement is Passed in Direct Contravention of the Principles of

Natural Justice

A judgement passed by a court must be so obtained after following the due process of law. This
means that the court must abide by and enforce the principles of natural justice.
A judgement which has been passed in ignorance of/in violation of the principles of natural
justice will be regarded as being null and void and the trial shall be considered to be “coram non
judice”.

E. When a Foreign Judgement is Procured via Fraud

As is the principle in Private International Law, if a foreign judgement is obtained via fraudulent
means, it shall not be considered res judicata and thus as such shall not be considered to be
conclusive and shall not be enforceable in the Republic of India.
In the case of Satya v. Teja Singh [12], the husband was able to divorce his wife by misleading
the court stating that he was an American citizen even though he was not. The Supreme Court of
India recognising that the husband had defrauded the foreign court held that the decree of
divorce would not be enforceable and was null and void.

F. When a Foreign Judgement is Found to be in Violation of Indian Law

When a foreign judgement is predicated upon a violation of Indian law, it would not be
enforceable in India.
It is imprudent for any nation – state to adopt blindly the rules of Private International Law. Each
and every case that is adjudicated by the courts in the Republic of India must be done in
accordance with Indian law and must not go against Indian public policy.

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In the case of Ruchi Majoo v. Sanjeev Majoo [13], the Supreme Court held that in matters
related to child custody, the most important issue is that of the welfare of the child. As such, a
court in India must review the case on its own and adjudicate the matter, taking into
consideration the ruling of the foreign court.

RECIPROCATING TERRITORY AND ENFORCEMENT OF FOREIGN

JUDGEMENTS

1. 44A of the CPC states that a “Reciprocating Territory” is any country or territory outside the
Republic of India which the Union Government can via notification in the Gazette of India
declare as being a reciprocating territory.
A certified copy of a judgement passed by a superior court in any reciprocating territory when
filed in a District Court in India shall be executable in India and its execution will have the same
effect as if it was passed by a District Court in India.
In the case of Kevin George Vaz v. Cotton Textiles Exports [14] the phrase “reciprocating
territory” was defined by the court as any nation or territory outside India that the union
government has recognized as a reciprocating territory. The term “a territory outside India” was
construed by the Court to include territory that may be part of a nation as well as territory that
may have ceased to be part of a nation.

A. Manner of Enforcement of Foreign Judgements/Decrees

The pathway to be taken for enforcement of a foreign judgement depends on whether the court is
present in a reciprocating territory or not.

B. When Judgement Passed by Foreign Court of a Reciprocating Territory

1. 44A of the CPC states that a judgement passed by a superior court of a reciprocating
territory can be executed in India as if it were passed by an Indian District Court.
2. 44A (1) of the CPC states that when a certified copy of a decree passed by a superior
court of a reciprocating territory is filed in a district court in India, it shall be executable
in India and its execution will have the same effect as if it was passed by a District Court
in India (as laid down in Order 21 of the CPC).

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When an execution application is being filed, the original certified copy of the relevant decree
and a certificate obtained from the superior court has to be attached to the application.

C. When Judgement is Passed by a Foreign Court of a Country Not Designated as

Reciprocating Territory

When the relevant judgement/decree has been passed by the court of a territory not designated as
a reciprocating territory by the Union Government, the applicant must file a suit on the foreign
judgement or the original cause of action or both in a court in India possessing competent
jurisdiction
In the case of Marine Geotechnics LLC v/s Coastal Marine Construction & Engineering
Ltd.[15], the Bombay High Court held that when a foreign court from a territory which is not a
reciprocating territory passes a decree, the person who has obtained such a decree must file a suit
on the foreign judgement or the original cause of action or both in a court in India possessing
competent jurisdiction. This is because the foreign decree cannot be directly executed. Only a
domestic decree which has been passed by an Indian Court of competent jurisdiction which is
based on a suit based on the foreign decree is enforceable. This decree is obtained only when the
decree holder can show to the Indian court that the foreign decree satisfies the test as laid down
in S. 13 of the CPC.
A suit on a foreign decree must be filed within 3 years from the date when the foreign decree
was passed.

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 REFERENCES

1. S. 2(5), The Code of Civil Procedure, 1908

2. S. 2(6), The Code of Civil Procedure, 1908
3. Satya v. Teja Singh, [1975] 1 SCC 120
4. Loucks v. Standard Oil Co., 120 N.E. 198 (1918)
5. Conflict of Laws (7th Ed.), R. 183
6. R. Viswanathan v. Rukn – ul – Mulk Syed Abdul, AIR 1973 SCC 1
7. Sankaran Govindan v. Lakshmi Bharathi, [1975] 3 SCC 351
8. Gurdyal Singh v. Rajah of Faridkot, ILR (1895) 22 Cal 222 (PC)
9. Alcon Electronics (P) Ltd. v. Celem S.A. of France, (2017) 2 SCC 253
10. Lalji Raja &Sons v Firm Hansraj Nathuram, (1971) 1 SCC 721
11. Narasimha Rao v. Venkata Lakshmi, (1991) 3 SCC 451
12. Ruchi Majoo v. Sanjeev Majoo, (2011) 3 SCC (Civ) 396
13. Algemene Bank Nederland Nv vs Satish Dayalal Choksi, AIR 1990 Bom 170
14. Kevin George Vaz v. Cotton Textiles Exports, 2006 (5) BomCR 555
15. Marine Geotechnics LLC v/s Coastal Marine Construction & Engineering Ltd., 2014 (2)
Bom CR 769

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